DAVE KOPEL'S SECOND AMENDMENT
NEWSLETTER

Delivery of this newsletter comes courtesy of
the Second Amendment Foundation, in Bellevue, Washington.
http://www.saf.org

Please visit Dave Kopel's website, containing articles on the
Second Amendment and other freedom topics.
http://www.davekopel.org

Table of Contents

New by Kopel:On the Election: A Great Night for the 2nd
Amendment; State-by-State predictions and analysis; RKBA and the
Dems; 'Extremists'; Kopel in the Courts: Amicus
brief in Peruta v. San Diego; Articles:
Review of Halbrook's new book; Obama's Anti-gun Summer;
Bloggery: Kristallnacht, Puerto Rico seeks to Limit
Range Time

New by Kopel

On the Elections

The Second Amendment's Great Election Night

"The 2010 election results do not mean that Second Amendment
rights are permanently secure. But they are safer today than they
were two days ago, and Tuesday's results significantly increase the
opportunity for the enactment of a wide range of rights-protective
state and federal laws in 2011."

NRA Supports Pro-Gun Democrats, and Many Democrats Support the
Second Amendment

"Democrats constitute an indispensible part of the pro-Second
Amendment majority of the current Congress. Without the NRA's strong
working relationship with so many Democrats, 2009-10 would have seen
the enactment of destructive legislation for gun rights, rather than
the constructive legislation which has become law."

Remember the imaginary "National Republican Association?"

Dave here makes the point that the National Rifle Association
must necessarily work across party lines to fulfill the
organization's primary goal of preserving the Right to Keep and Bear
Arms in the United States.

Ronald Reagan: Extremist Collaborator

"When Ronald Reagan first ran for elective office, Governor of
California in 1966, the opposition attempted to tar him as an
extremist. Reagan was running against incumbent Governor Pat Brown,
father of the 2010 Democratic California gubernatorial nominee Jerry
Brown. Notwithstanding the extremist charges, Reagan won the
election, and served two terms as California Governor, and then two
terms of President of the United States. Let's take a look at that
the use of the extremism issue in 1966 campaign."

Kopel in the Courts

Amicus Brief in Calif.
Concealed Carry Case

"Peruta v. San Diego is one of several cases challenging
sheriff misapplication of California's concealed handgun carry
licensing statute. The case features Chuck Michel as lead attorney
for plaintiffs. The case does not assert that California's statute
requiring a license to carry a concealed handgun for protection is
unconstitutional. Rather, the argument is simply that the statute
specifies that licenses should be issued to qualified applicants
(training, good moral character) who have 'good cause.' Pursuant to
Heller, lawful self-defense is not only good cause, it is
the best possible cause. The case has already survived a motion to
dismiss. Along with Prof. John Eastman, I filed an
amicus brief in the case on behalf of the Independence
Institute, the Law Enforcement Alliance of America, Doctors for
Responsible Gun Owners, and the Center for Constitutional
Jurisprudence. The arguments are:

The case can be decided without a standard of
review, because near-total prohibition of a constitutional right
is never constitutional.

A "reasonable"regulation is one that does not
eliminate the exercise of a right, but instead is narrowly
tailored, is based on a significant government interest, and
leaves ample alternatives.

The state court cases approvingly cited in Heller
expressly affirm the right to carry.

Twentieth century state court decisions affirm the
general right to carry for lawful self-defense.

McDonald specifically addresses and prohibits mass
deprivation of the right to bear arms."

Puerto Rico Law Limiting Use of Shooting Ranges

Puerto Rico's new laws, ostensibly to bring the territory into
compliance with Heller, contain requirements for shooting
ranges to collect data upon the type and quantity of their users'
ammunition. Another law limits range users' target practice to five
hundred rounds per year. Both are extravagantly unconstitutional.

International

Finland

Finland approves new Gun Control Act to further restrict
firearms

The Finnish government has raised the age for the purchase of
handguns, shortened the duration of licenses to own firearms, and
required psychologists to inform the police if they believe their
patients are unfit to own a firearm.

Israel

Wild Animals Can Relax as Hunting May Soon be Prohibited

"While fewer and fewer hunting licenses have been renewed each
year for the past 10 years and no new licenses are granted at all,
the sport could disappear entirely if a bill by the Environmental
Protection Ministry passes into law."

Kuwait

Unlicensed guns on Sale at Friday Market

"Despite laws imposing strict restrictions on gun ownership in
Kuwait, firearms are openly on sale to unlicensed buyers at the
Friday market in Shuwaikh, where anyone with the money can get hold
of a handgun or hunting rifle for as little as KD30." The amount is
roughly $100 USD.

Mexico

U.S. Effort to Slow Flow of Guns into Mexico Failing

"A much-touted federal effort to keep U.S. firearms out of the
Mexican drug wars is unwieldy, mismanaged and fraught with
'significant weaknesses' that could doom gun smuggling enforcement
on the border to failure, a U.S. Justice Department inspector
general's review concluded yesterday, says the Los Angeles Times.
Federal Bureau of Alcohol, Tobacco, Firearms and Explosives agents
focus only on small gun sales and do not share information with law
enforcement officials on both sides of the border, the review said.
An effort to trace U.S. guns in Mexico too often comes up short
because of missing data and the lack of U.S. training for Mexican
police, it found."

Vehicle Searches Yield Few Weapons at
U.S.-Mexico Border

"Searches of vehicles crossing into Mexico
are yielding few weapons in what U.S. officials concede is a
frustrating effort to slow the flow of guns to violent Mexican
cartels operating across the U.S. border."

New Zealand

"'These weapons have proven popular with
violent criminals who have, in the past, been able to own and use
them without having to undergo the rigorous background checks
required for a firearms licence.' PCP air rifles have been used in
two fatal shootings in this country, including the murder of Police
Sergeant Don Wilkinson."

United Kingdom

Fox Hunting Ban Set to Stay as Repeal
Campaign 'Falls off Political Agenda'

"The impact of the economic downturn has
meant attempts to change the controversial law have become a low
priority, the Countryside Alliance acknowledged. As the traditional
start of the season gets under way today, the Alliance conceded it
was keeping a low profile because it was foolhardy to make hunting a
priority issue when country was just recovering from a recession"

Constitutional Amendments and
More Election News

Voters Say No to Hunting and Fishing
Amendment (Arizona)

"Proposition 109 would have made hunting and
fishing on par with freedom of religion, free speech and the right
to bear arms. It also would have given the Legislature exclusive
authority to regulate those activities, although it could delegate
rule-making to the state Game and Fish Commission."

Arkansas Voters Approve Right to Hunt, Other
Items

"Providing constitutional protection to the
right to hunt and fish became an issue because Arkansas has approved
an animal cruelty law that allows prosecutors to charge the offense
as a felony. State Sen. Steve Faris, D-Malvern, was a key backer of
the proposal."

NRA Spends $20 Million
This Cycle

"'It's an enviable position for any group to
be in," Cox said. "We have Republicans and Democrats fighting over
who is more pro-gun and whose more pro-NRA. That's a great position
for us to be in, and that's a great position for NRA members to be
in.'"

States

Arizona

Why Has Phoenix Banned Gun Safety Ads?

A Phoenix Assistant City Attorney, Ted
Mariscal, ordered a firm that had posted illuminated bus-shelter
advertisements for a gun-safety program to remove them all. Mariscal
when asked could not explain his criteria for removing the
advertisements paid for by
TrainMeAZ.com, a commercial joint-educational effort of the
firearms industry in Arizona.

California

"Two gun rights groups have dropped a lawsuit
against the Sacramento County Sheriff's Department and Sheriff John
McGinness after authorities clarified that 'personal safety' is a
sufficient reason to be issued a permit to carry a concealed weapon,
according to a news release by the groups." Note the similarity of
their settlement to Dave's amicus brief in
Peruta v. San Diego above.

Illinois Sportsmen to DNR: Where's Our
Money?

"An investigation by the Illinois Policy
Institute has revealed that the Illinois Department of Natural
Resources (IDNR) is pumping the state's Pittman-Robertson Act funds
into two state universities at Champaign and Carbondale." Fund from
the Pittman-Robertson Act come from the license fees charged to
sportsmen and are dedicated by the Act to the improvement of
sporting resources in a given state.

Maryland

Crime Scenes: Faith Leaders Protest Gun
Shop--Clergy Members Target Shop That's been Called a Top Gun
Distributer to City Criminals

Fourteen clergymen, members of a national
group called "Heeding God's Call, a Movement to End Gun Violence"
protested peacefully at a Baltimore Gun Shop, where they received a
polite hearing and a firm refusal to adhere to the group's demands
for restrictions on the shop's sales beyond those required by
Maryland law. Note the name of the feature containing the story.

New Jersey

N.J. laws on Guns May be Relaxed

"Some lawmakers hope the McDonald v.
Chicago decision -- which one Supreme Court justice predicted
will spark a slew of lawsuits -- will loosen New Jersey's
regulations at a time when it seems most necessary."

Culture

Church Honors Saint by Establishing
Christian Hunters Group

"Sewell and his church celebrated the patron
saint of hunters and hunting dogs during Sunday morning's services
by blessing hunters, their dogs and establishing the Guild of Saint
Hubert, a Christian hunters group that promotes spirituality, safety
and respect in the hunt."

Colo. Supreme Court to Hear CU Gun Ban Case

"The Colorado Supreme Court will hear
arguments on the legality of the University of Colorado's
campus-wide firearms ban, the court's justices announced Monday. In
June, the CU Board of Regents voted 5-4 to appeal to the state's
highest court in an effort to overturn a Colorado Court of Appeals
decision that CU violated state law by banning concealed weapons
from its campuses."

What Burden of Proof Is Constitutionally
Required for Denying Gun Rights to the Allegedly Dangerous and
Mentally Infirm?

"The preponderance of the evidence standard
in this case means, 'Better that 1 dangerously mentally ill person
get a gun than 1 non-dangerous person be disarmed — but just a
little better, so that on the other hand it's better that 9
non-dangerous people be disarmed than 10 dangerously mentally ill
people get guns.' A clear and convincing evidence standard might be,
'Better that 3 dangerously mentally ill people get a gun than 1
non-dangerous person be disarmed.' What do you think is the proper
ratio?"

Abott v. United States

In its first full opinion of the 2010-11 term, the Supreme Court
on September 15 upheld longer prison sentences for carrying or using
a firearm while trafficking drugs. Justice Ginsburg authored the 8-0
opinion, which affirmed rulings by lower courts against defendants
whose drug trafficking sentence received five additional years due
to the presence of a firearm.. The cases came from the U.S. Court of
Appeals for the Third Circuit in Philadelphia and the U.S. Court of
Appeals for the Fifth Circuit in New Orleans. Certain federal courts
had said the additional five years could not be added onto related
sentences for federal crimes. Newest Justice Elena Kagan did not
take part in the case because she had represented the U.S.
government at the court before becoming a justice.

New Scholarship

The Constitutional Right to Hunt: New Recognition of an Old
Liberty in Virginia

Stephen P. Halbrook19 William & Mary Bill of Rights Journal
197(2010)
http://tinyurl.com/2cgbygjThis link is to a PDF file,
which requires Adobe Acrobat Reader or similar software.

"The Constitution of Virginia was amended in 2001 to provide:
'The people have a right to hunt, fish, and harvest game, subject to
such regulations and restrictions as the General Assembly may
prescribe by general law.' Currently, ten states recognize hunting
as a constitutional guarantee, and proposed amendments are pending
in other states. The oldest, dating back to the American Revolution,
sought to guard against royal privilege as practiced in England,
while the newest, adopted in recent decades, seek to preempt hunting
bans sought by 'animal rights' zealots."

Heller's

"This article reflects on District of Columbia v. Heller
and proposes a new footing and limit to the right to bear arms: a
person's inalienable right to self defense. Self-defense is a
natural right embedded in personhood and is antecedent to the social
contract that sets up a state. This right consequently remains with
the person following the establishment of the state and allows her
to use proportional force necessary for resisting aggression. The
right to bear arms derives from the constitutional right to
self-defense, which merits protection under both the Ninth and
Fourteenth Amendments. This instrumental nexus calls for a dynamic
determination of the scope of the right to bear arms under the
Second Amendment, along Heller's lines. The scope of the
right to bear arms should be defined by an ordinary citizen's
necessity to use arms in defending herself proportionally against
criminals. This criterion will allow courts to deliver both
predictable and balanced decisions that align with originalism."

Prudentialism in McDonald v. City of Chicago

"At least two kinds of prudential argument have been identified
in the literature on constitutional interpretation: court-centered
prudentialism and system-centered prudentialism. Commentators often
characterize court-centered prudentialism as animated by concern
over the Supreme Court's preservation of its public legitimacy,
which can be undermined when the Justices decide controversial
questions in ways that cause backlash. By contrast, system-centered
prudentialism asks not only what judicial decision is best for the
Court's effectiveness, but also what response is best for the
constitutional system as a whole when the Court's legitimacy is not
at stake. The Court's recent decision inMcDonald v. City of
Chicago illustrates the practice of system-centered
prudentialism. Judging from the concerns raised by several Justices
at oral argument, especially Justice Scalia, members of the
McDonaldplurality appeared to reason prudentially in deciding
to use Section One of the Fourteenth Amendment's Due Process Clause
— and not its Privileges or Immunities Clause — to apply the Second
Amendment to state and local governments. But the Court reasoned
prudentially in substantial part because it was troubled about the
consequences for the American constitutional system of opening up a
Pandora's Box of new assertions of unenumerated rights, not because
its own legitimacy was threatened."

I'll Give You My Gun When You Take it from My Cold, Dead Hands!'
The Future of State Gun Control Laws Post-McDonaldand
Heller and The Death of One-Gun-Per-Month Legislation

"After a review of Second Amendment jurisprudence over the past
200 years, as well as a specific review of case law relative to the
Massachusetts right-to-bear-arms and the corresponding regulation of
gun ownership in Massachusetts, this article will establish that the
likely level of scrutiny for challenges to gun control laws will be
a "sliding-scale"review; that the Massachusetts Supreme Judicial
Court will have to revisit its interpretation of the Massachusetts
right-to-bear-arms clause and hold it to bestow an individual right;
that the proposed Massachusetts one-gun-per-month law will be held
to violate the Second Amendment of the United States Constitution
and Article 17 of the Massachusetts Constitution; and, that the
existing Massachusetts laws relative to owning a handgun, which
require both a Firearms Identification Card (FID Card) and a License
To Carry (LTC) permit, will be deemed unduly restrictive in
violation of both the Second Amendment and Article 17."

Will It Hurt Me in Court? Weapons Issues and the Fears of the
Legally Armed Citizen

"Predictably, the defensive gun culture is concerned with the
legal ramifications of gun usage. Popular gun magazines are full of
legal cautions by their columnists such as Massad Ayoob and with
tales of defensive usage such as the
American Rifleman's
Armed
Citizen column. Understanding these ramifications is important to
gun users and legal professionals for a variety of reasons, and
understanding how defensive gun usage affects others' views of gun
users is equally important." This article is a full, cited,
critiqued survey of legal issues that might turn up at trial after a
self-defensive shooting.

Two Faces of Judicial Restraint (Or Are There More?) in
McDonald v. Chicago

"'Judicial restraint' and its counterpart 'judicial activism' are
widely regarded as meaningless terms, useful primarily as rhetorical
weapons with which to praise or condemn judicial decisions about
which the speaker has strong feelings. The terms certainly are
frequently used in that manner, but there may also be analytically
distinct forms of judicial restraint to which different judges
adhere. Academic commentators have articulated and defended various
theories of judicial restraint, but my purpose here is to examine
the debate 'at work,' so to speak, in an actual case. The Court's
recent Second Amendment incorporation decision,
McDonald v.
Chicago, is an especially interesting example because
strikingly different models of judicial restraint are adopted by
subsets of the more conservative wing of the Court, and subtly
different models are adopted by subsets of the more liberal wing. A
close look at the opinions in the case suggests that each model has
different strengths and weaknesses, but also that they are by no
means created equal. Surprisingly, perhaps, the most radical
sounding opinion in the case may on balance be the most restrained."

Resources

Firearm Inquiry Statistics (FIST) Program

"Designed to collect annual data describing the number of
inquiries made in connection with presale handgun checks and the
number and basis for rejection of such inquiries. Data are collected
directly from state agencies conducting background checks and from
local checking agencies and include the number of firearm
applications made to the agency, firearm applications rejected by
the agency, and the reasons for rejection. Data collection
procedures are adjusted to reflect the differing presale check
procedures under the permanent system (which became effective on
11/30/98) and the interim period (02/28/94 - 11/29/98)."

The Rut Report

"Welcome to Field & Stream's Rut Reporters site--the only one of
its kind on the Internet. This is where you will get up-to-date
reports, information, and insights about the stage of the rut in
every region of the country. Our reporters have contacts throughout
the country that will tell them what the bucks are doing RIGHT
NOW--whether they're just forming bachelor groups, actively making
scrapes, or recklessly chasing does. All that information--plus
photos and videos--will be available right here. You'll be able to
customize your hunting plan, for the day, week, or season based on
what you find here."

OL Weather

has recently launched a new website
feature, OLWeather. The free service provides sportsmen with weather
data from across the country and local to their area. There is are
5-day forecasts for hunters of deer and turkey, and anglers. The
service predicts the best days for a given sportsman's success in a
given area.

This newsletter is compiled with help from Dr.
Rob
S. Rice. For more on this effulgent, yet lachrimose individual, see
here:
http://robricebooks.com. He has of late
portrayed the role of Senator Oswald Kensington at the
Avistrum Academy of Witchcraft and Wizardry. Although his
character is much misunderstood, he is not the villain. The villain
is much, much worse.

Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.

Nothing written here is to be construed as
necessarily representing the views of the Independence Institute or as an
attempt to influence any election or legislative action. Please send
comments to Independence Institute, 727 East 16th Ave., Denver, Colorado 80203 Phone 303-279-6536. (email)webmngr @ i2i.org